Wednesday, December 20, 2006
Saturday, December 16, 2006
So here is my suggestion - check out this article by Kevin Eikenberry "The Pause that Refreshes: Seven Reasons Why Goals Matter". The very first reason he addresses really hit home with me:
"Goals create acccomplishment instead of activity." How much of my time is spent on 'stuff' that does not contribute to my purpose(s)? Answer: too much!
Print it out and take it with you. When you escape to the garage to hide from your in-laws during the holidays, you'll have something to read and think about.
Wednesday, December 06, 2006
One of our newsletter readers emailed me this week regarding that discussion:
"...one of the recurring questions was how to discover whether or not we have been disclosed as experts without our knowledge. In this day of IT and search engines, there must be a way to do this. Adversary attorneys always seem to know of our past testimony, most likely from Lexis-Nexis searches, and attempt to use it to impeach us. My question is this: would a Lexis-Nexis search be able to discover all the times a given expert has been disclosed? If it does, it would pay for us to subscribe to Lexis-Nexis, or at least pay for periodic searches, or even have friendly retaining attorneys do it for us. If we can discover that we have been disclosed without payment of a retainer, that is the first step to collecting damages, and to stop this from happening again."Here was my reply:
"I called an attorney friend of mine who is familiar with Lexis and here was his take: 'Because expert witness designations are not always part of the public record, there is no easy way to know when an attorney has designated an expert. LexisNexis would not yield this information, as designations are usually only exchanged between opposing parties. There is a distinct difference between when an expert has testified and when an expert has been designated. Expert testimony is much easier to uncover than designations.'Any thoughts on this subject? Is the situation different in your state? Is this something the American Bar Association should/could address? Post your comments and suggestions here or email them to me at email@example.com . This is too common a problem and I'm not one to just say, "well, that's the way it is".
The attorney I spoke to is in California and pointed out that in that state (and believe me, it differs a great deal from state to state!) the attorney has to swear under penalty of perjury that the expert has agreed to testify at trial. Therefore, an expert who designates an expert in California without their permission risks criminal penalties. Some other states have similar statutes."
Sunday, December 03, 2006
And if you missed the "holiday" mailing, it's not too late to get a New Year's mailing out. Check with your local printer or the various card catalogs you've doubtless received and be originial. Your card or announcement for the new year could stand out even more, coming after the flood of holiday greetings!
Tuesday, November 28, 2006
For example, medical experts of all types from around the United States should be following the legal proceedings regarding professional medical associations in relation to expert testimony. See the blog post by Rick Shapiro last week - "Lawyers Battle On For The Doctors Who Testify In The Courtroom".
Or, for insights helpful to experts of all kinds, you can find advice from attorneys to other attorneys regarding expert witnesses, such as the recent podcasts by Evan Schaeffer on "Advanced Deposition Techniques" or the Trial Lawyer Resource Center , a blog with posts from many trial lawyers addressing multiple issues and topics. Use the 'search site' tool to look for your key words; put in "expert witness" and get an attorney's view of the five most important questions to ask an expert witness at deposition.
One potential resource, which I must admit I was hesitant to even visit, could be YouTube . Various depositions and advice about depositions have been posted there in recent weeks. Try different searches such as "deposition", "expert witness", and terms specific to your practice.
Tuesday, November 14, 2006
More than once an expert has contacted us saying, "Last year at this time, I had tons of cases. Now I have nothing."
When asked, "What were you doing last year that you aren't now?" the response is something like, "Oh, I was just attending section meetings at the local bar association and sending out professional announcements to my contact list every few months."
"So why did you stop?"
"Well, business was good."
DUH! (This also illustrates that marketing is not something you only do when business is bad - but that's a whole 'nother article.)
I am guilty of doing the same thing in many aspects of life. For example, I know that I feel better and have more energy when I drink a lot of water. But it's not until I've been feeling sluggish for awhile that I remember that and starting drinking more water! It was working, so why did I forget?
If your business has fallen off or any other area of your life is not quite up to par, ask yourself, "What was I doing differently when things were going well?" and start doing those things again!
Tuesday, November 07, 2006
Experts may never seem totally independent because they are being paid for their services. But, the apparent lack of independence may be nothing more than the appearance of a relationship between parties, even though no relationship exists.
As we always stress, you are NOT an advocate - that is the attorney's job but this is a good reminder that fact and appearance are two different concepts in the courtroom. Opposing counsel's job is to discredit your testimony, and as Mr. Costello writes:
The attempt to impeach an expert because of relationships with counsel or the client, the amount of fees charged, or contingent fee arrangements is common in today's legal environment.
Also in this article are tips to establishing independence that include not altering your billing rate and practices for different client-attorneys, keeping a balance of plaintiff and defendant work, and discussing any potential 'gray areas' upfront with counsel at the very beginning.
Good advice and a reminder that just because WE know something to be true and done with integrity doesn't guarantee that it appears that way or that it can't be made to appear otherwise.
Friday, November 03, 2006
One of the most frequent inquiries is about how to find out if you've been designated without your permission. I know of many places to find records and transcripts of expert depositions and testimony, but have yet to find something like this. Often, when an expert is named in this way, it is to encourage a settlement based on the esteemed reputation of that expert. So the matter never gets to court, where the records would be more easily found.
Have any of you found a way to research this? How do you usually find out that you've been designated by an attorney (especially if the attorney has never even contacted you before)?
Sunday, October 29, 2006
Did they hope I wouldn't notice the overcharge? It would certainly have been easy to miss in the rush to get from the car to the gate.
Read the whole story and 'buyer beware' - I'll be looking closely at my receipts from now on.
Monday, October 23, 2006
If you have a business website - why? Is it not to inform visitors and invite them to contact you, make a purchase, or request more information? So wouldn't you want to make it as easy for them to reach you as possible? Yet the number of websites I visited that lacked easy-to-find contact information was astounding!
They might have a form to fill out that sent an email, but no physical address or phone number. And I tend to suspect any business that won't provide a physical address as being less than legitimate anyway. But why not offer every conceivable way for prospects and potential clients to reach you? Meet their comfort level - be if fax, phone, email or snail mail. And make that information easy to find; I didn't waste time looking past two mouse clicks, and research shows most of your website visitors won't either.
Thursday, October 12, 2006
It was a sales solicitation for another domain name!
Read this stuff carefully. I periodically get calls from clients who have received emails or faxes and are concerned that their domain name or hosting has expired. Don't mistake a sales solicitation for a genuine renewal notice. And watch those, too. A few months ago we were treated to domain name sales pitches couched as renewals. Read your mail, and you can discard most of it. - Rosalie
Thursday, October 05, 2006
Bernstein has (with WSJ permission) reprinted the piece, "Rule of Law Quackspertise" at The Volokh Conspiracy in which he encourages state courts to use the tools provided by the federal rulings (such as Daubert) to "ban junk science and quackspertise." He refers to a recent New York case to support his contention that, "despite far-reaching reforms, junk science still plagues American courtrooms."
With several changes to the Federal Rules of Evidence currently in progress, I found it worthwhile to spend a few minutes perusing his article and especially the feedback left by other attorneys in response to this piece.
Saturday, September 30, 2006
This situation, what I call DWP (Designation Without Permission) by attorneys, is much more frequent than I had believed and terribly unfair! (I am compiling the responses this weekend and will be posting the compilation here and on our website as a free, downloadable document; I'll let you know as soon as it is available.)
While reading the various experiences of experts in this regard, I was approaching despair, but found a glimmer of hope in a clip from Pacific Business News.
The Hawaii Supreme Court has suspended a 39-year-old California lawyer for a year for placing a newspaper ad intended to discourage an expert witness from testifying in a case.
Darin P. Wright' s suspension took effect Sept. 18, according to the Office of Disciplinary Counsel, which investigates the rules governing lawyers in Hawaii.
While not much, at least someone somewhere is willing to do something about unethical treatment of experts by attorneys!
Thursday, September 14, 2006
Wednesday, September 13, 2006
In the May/June 2006 issue of AARP Magazine I found a blurb about this new practice (unfortunately, I haven't found a link for this particular article). Writer Laura Daily reports that while most popular with celebrities (Brad Pitt and Jennifer Aniston hired a judge to handle their divorce proceedings) the benefits are attracting ordinary folk as well, due in part to the savings in time and money:
Booking your own judge means your lawyer and expert witnesses aren't sitting running the meter while a jurist hears some other case, notes Kathleen Robertson, who practices family law in Los Altos, California. The rental can cost $350 to $475 an hour (a rate you split with your opponent), but because most cases are settled in days instead of weeks, "using a private judge can save 30 to 50 percent in time and fees," she says.
Other benefits include bypassing clogged court systems, the ability to pick a judge who specializes in that type of case, and, unlike arbitration, the decision can still be appealed.
Renting a judge is a practice already in use in California, Colorado and Ohio, with Texas and Florida soon to follow.
Thursday, August 31, 2006
But if you limit your search in this way, you may be missing out on some great 'insider' information. Articles, newsletters, blogs and books written by and for attorneys can provide a treasure trove of knowledge you can use to improve your skills, performance and success as an expert consultant.
For example, one newsletter I subscribe to is Trial Tips Newsletter by Elliott Wilcox, a Florida trial attorney. In the last few issues he has been sharing tips on creating a clear appellate court record, that he came up with after conversations with a dozen or more court reporters. One of many points experts could find helpful:
"Look up and speak for the record. One of the less obvious tips the court reporters shared was about how your posture affects the record. When read [from your notes] or quote extensively from [records, datasheets, interviews], you probably have a tendency to talk into the piece of paper or down to the paper on your desk. When you look at your papers, rather than looking up ... your voice comes out mumbled, you speak too fast to be understood, you don't pronounce each word individually, and your record comes out garbled. To create a better record, stand up straight, minimize your dependence on your notes, and look at the person you want to persuade."
Don't forget to investigate blogs written by and/or for attorneys, like one by the Association of Trial Lawyers of America. Here's an excerpt from the July 11th post of Tuesday's Litigation Tip
"Do not ask the expert "Why?" or "How can you say that?" (unless you can effectively handle the answer and unless you know in advance that you can effectively handle the answer)."
With books, you'll need to set some criteria or the choices available will overwhelm you. One that I like, written to help lawyers work with expert witnesses, is Expert Rules - 100 (and More) Points You Need to Know About Expert Witnesses by David M. Malone. Here's the kind of advice he offers attorneys about experts:
"When two experts are reasonably equally qualified, choose the expert with whom you feel more comfortable working and spending time. If you and the expert do not enjoy working together, then you will tend to avoid the frequent communication and long hours of preparation that are necessary to succeed. You can think of this as the 'glass of beer' test: if you wouldn't enjoy sitting down and having a glass of beer with the expert, then you probably shouldn't hire her, if you have any choice at all. Expert work is hard enough without overlaying it with personality problems (even if it is your personality that is at fault)."
As long as you take into consideration that the intended reader of these publications is attorneys, I think you might find some to be quite helpful. I'm putting together a 'how-to guide' with tips on finding legal articles, blogs, and newsletters that relate to specific areas of expertise and particular issues. I'll get that done over the holiday weekend and post it here next week.
Monday, August 21, 2006
So, this weekend (when it was too hot to do anything else!) while going through the various stacks in my office, I was excited to run across a particular article again. Printed in Legal Affairs back in March of 2003, "Opinion for Sale: Confessions of an Expert Witness" is a rare glimpse into the raw thoughts of an expert witness, from his initial experiences in the 1970's and the evolution of his practice into the present. Author Steven Moss expresses some ideas that might be offensive and others you may say, "Oh, me too!"
Either way, I think it's a unique take on this very unique field. Beware, it's a long article; you might want to print it out and read when you're standing in line somewhere. Let me know what you think.
Thursday, August 17, 2006
Well, No. As many of you know only too well, general marketing principles and guidelines for professional service providers simply don't apply to the expert witness. Fair or not, the rules ARE different for experts. You will quickly work yourself out of contention if you start to promise results or, in marketing speak, "benefits," in your correspondence, marketing materials, or website.
In a similar vein, you do not have the luxury of placing your thoughts and reactions to events or even your commentary online, unless you are VERY, VERY careful and even then I just don't recommend it. Statements can so easily be taken out of context, your opinion and industry methodology can change over time - anything and everything, especially on the Internet, can and will be found and used, either to exclude you from the list of experts to choose from, or by opposing counsel to discredit and possibly disqualify you.
The following, while written as regards writing articles and making presentations, can also be applied to blogs. This is one of my favorite passages from The Expert Witness Marketing Book:
"All of your writing and speaking is discoverable and can be cussed and discussed with you in deposition and in court. Be careful. Be consistent. Investigate, verify, and cross-examine your facts. Proofread, proofread, and proofread again."
And I say it just isn't worth the risk. There are too many other time-tested, proven and effective methods for getting on the radar screens of the attorneys who need your services.
Thursday, August 10, 2006
"...one client even went so far as to sue me to get the retainer back. In discovery I found out she told her opponent I had rendered a favorable opinion for her client so he settled. I had not even rendered an opinion at all, though I was working on the case when she called to say it was settled. Since I record all of my calls, I spoke to opposing counsel and confirmed she lied to him. I turned the tape over to the Ethics Board in NJ and the investigator bent over backwards to defend the lying attorney.
This is why experts get upset. You have a blatant case of unethical and possibly illegal conduct on the part of an attorney and the Ethics Board does nothing and to add insult to injury, is rude and discourteous besides!"
Monday, July 31, 2006
Experts relate little success in reporting this treatment to the attorney's bar association. And I would be leery of suing an attorney, although at least one attorney came out ahead by taking counsel to Small Claims Court when they refused to pay his bill. The attorney agreed to use the expert for all of his cases where that expertise was needed if the expert agreed to settle for one-third of the award granted by the court. He agreed and the attorney kept his word.
Others have found that third-party collectors are sometimes more successful in collecting monies owed than the expert himself. But this is no guarantee either.
I'm hoping some of you readers can help me respond to the question I received below by sharing what has or has not worked in your practice.
"At the present time I am dealing with an attorney/client of rather dubious ethics. His office had contacted me and after I learned of the particulars of the case, I chose to take the case. A review of the Martindale website indicated that this man is an AV-rated attorney. My history with AV-rated attorneys throughout the USA is that they tend to give superb direction, they pay promptly, and that there is transparent two-way communication.
This client retained me in a defense case. The evidence against the Defendant was examined by me and it was my professional opinion that the Defendant could not have done what he had been accused. I was prepared to testify at a hearing, but due to some "legal maneuvering" (not a Daubert or Kumho challenge), I was prevented from testifying. The actual rationale for this apparent suppression has NEVER been made clear to me.
When I invoiced my client for billable hours and expenses beyond the retainer, the net result has been six months of NO COMMUNICATION from him. Multiple certified letters, faxes, and telephone calls have been ignored. His excuse was that, since the outcome of the hearing was not favorable to the Defendant, the Defendant didn't pay him. Therefore, my attorney-client felt justified in not paying me. (The Defendant's name is NOT on our contract.) The sum owed is significant for a small business like mine, yet this sum is "budget dust" for the attorney-client.
This attorney-client is about 200 miles from my location, so I have been exploring ways to extract the delinquent funds from him. The only meaningful advice that is likely to get his attention and/or impact this DEADBEAT client is to sue this fellow in my county/venue. While I have NO EXPECTATION that I WILL EVER be paid, this will force the client to take time to mount his defense here. It is the principle of ethics/fair-play that drives me. No one that I regularly do business with would ever knowingly do this to an expert.
I have indicated to my local attorney-clients that, in lieu of receiving any funds, I'd like to obtain an ethics or a fraud conviction against this client in order that the State Bar Association can REVOKE his license to practice law. In short, no human being should ever be subjected to this alled "Man of Law" again.
I have had many positive experiences providing a wide range of consulting, expert witnessing, investigative services and litigation support for clients throughout this country. Perhaps I was overdue for an experience like the one described here. If other experts have had similar experiences in dealing with INCOMMUNICATIVE DEADBEAT clients, I'd be very interested in how these incidents have been handled."
Can anyone help this expert with creative resolutions or suggestions?
Thursday, July 20, 2006
This proved to be so helpful to so many of our clients and readers that I have compiled some of the feedback we have received in the last six months, addressing many issues of concern to expert consultants to the legal industry.
*Editor's Note* Due to the unique nature of the work undertaken by expert consultants to the legal community, we go to great lengths to protect the confidentiality of our clients, readers, members, and associates. To that end, we have disguised the identities of the experts who contributed tales of their experiences, their heartfelt recommendations, and successful 'best practices' .
"I have run into a few [XYZ industry] experts who appear more or less with the 'red light of prostitution' over their heads. A few have falsified their credentials, which, in an endeavor that requires getting at the truth, is a huge non starter.
Most of the lawyers who have contacted me for services take the time to feel me out and learn about my background. That courting process is always interesting and it is important to be candid without over-selling oneself.
One lawyer was disappointingly overly dramatic on hearing my fee, which he declared indecent, although it is clearly in mid-range. Opposing counsel hired me through an associate so I got to work on the case anyway, which was settled out of court.
On advertising oneself as an expert, I think it's all about how you present yourself. About a third of my work has come through the website. I've had several law firms call me and compliment me on my credentials asking for a CV, but most of what I am currently working on has been through referrals from other law firms." - Technology Expert
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"We must always remember that it's the attorney who wags the tail...if they permit questionable 'experts' then they are equally to blame for misconduct. A reputable expert/professional will not buy into such practices." - Hospitality Expert
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"Thanks for the articles and discussion on retainers and up-front payment. Very good advice.
If I may, I'll mention that applying retainers to the last bill (instead of the first) requires some bookkeeping sophistication to avoid a cash crunch. Some newer/smaller practices may spend the retainer without knowing it, and then find themselves short when the case ends earlier than expected (i.e., settlement) and they are asked for a refund. This isn't a problem for careful operators, but the uninitiated can get hurt. 'Cash Reserve' should always be at least equal to 'Retainers Payable'." - Engineering Expert
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"A fascinating subject to me is, how does an attorney handle a deposition of an expert who flatly says his client is 'malingering'? I have read some of those depositions and it is interesting to see the techniques they use to discredit the expert. In one deposition against a fine expert who said flatly that the patient was malingering, the attorney attacked the translator and complained that the doctor got it all wrong because the doctor didn't speak the language! The doctor replied that the lawyer should be ashamed of being racially prejudiced." - Medical Expert
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"I have one additional suggestion on attire when going to see an attorney for the first time. I always ask how they dress in their office. I learned this the hard way when I traveled to the heart of Texas in mid-summer wearing a suit and tie, only to find that their dress code was business casual - golf shirts and cotton slacks. They had meant to tell me this, but overlooked doing so.
I have found that even big law firms in big cities like Chicago can be full-time business casual. And until one physically visits, it may be difficult to define just what they mean by 'business casual'. Further, the definition may change with the season (where they have seasons), and may differ for men and women. Ask first, and you will not be overdressed or underdressed.
If you are unsure, overdress." - Insurance Expert
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"The fact of the matter is that in [my industry] we have one or two who are known to be hired guns and are willing to say whatever the client wants them to say. Prostitution is a fact of life. As long as there are unethical lawyers we will have unethical "experts". The problem with shutting down either of them is the issue of who is to make the decision about who is the good guy and who the bad.
Bottom line: Each of us must take a good hard look at the face in the mirror each day and truthfully answer the question: Did I do the right thing yesterday?" - Transportation Expert
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It was from years of hearing questions about issues just like the ones commented on above that prompted Rosalie to write The Expert Witness Marketing Book and to eventually develop The Advanced Marketing Program for Expert Consultants
I hope you found some of these comments helpful. Please post you own comments about this (anonymously at your discretion).
Thursday, July 06, 2006
While being quoted in the media can be a highly effective marketing tool by increasing an expert's visibility and credibility, experts should always remember that everything they say can come back to haunt them. Do you think anything in Dr. Barry's comments would make an attorney less likely to hire him or has the potential to be twisted by opposing counsel to discredit him?
The second article was just fun to read. Sharon Gaudin of Information Week reported on a defense attorney's failure to "rattle" a computer forensics expert. It's worth looking at just for expert Keith Jones' composed responses to the aggressive cross-examination, but my favorite section of questioning was described by Ms. Gaudin like this:
At one point, Adams laid out a scenario in which someone could have created a backdoor in the UBS system, and then deleted it before a backup was done to capture it. When he asked Jones if he, personally, could do such a thing, Jones replied, "I could do a lot of things. That's why I'm hired to do the investigation."
As much as I enjoyed the article, I'll ask you the same question I did about the other article - will this media coverage help or hurt Mr. Jones as an expert?
Wednesday, June 28, 2006
I'm beginning to sound like a broken record, but it's true: You never know where your next referral will come from. This is why being able to clearly state what you do and for whom in a brief, well-rehearsed statement is so important. Engage in conversation with almost anyone, from your drycleaner to the person behind you in line at the supermarket, and inevitably you will be asked, "And what do you do?"
This is an opportunity! You don't know who they are and, possibly more importantly, you don't know who they know. So don't just reply, "I'm a doctor". Be prepared with your Statement of Profession, "I am an orthopedic surgeon who specializes in sports medicine and help attorneys with their cases, both plaintiff and defense", or "I am an engineer and consult with attorneys on structural engineering claims".
Always have plenty of business cards with you and easily accessible. It's natural and comfortable to hand over your business card while answering the "what do you do?" question. It helps you explain your practice, especially if you are uncomfortable discussing your legal support services in casual conversation.
Now that this new acquaintance has your card, you have an opportunity. A few weeks later when his neighbor, Sally Smith, Esq. is describing her newest case involving an injured player from the state college football team, he'll be able to say, "You know, I was talking to a doctor the other day who helps attorneys with just that kind of thing. Let me get you his card". (I can hear you guffawing, thinking "yeah, like that'll ever happen" but let me assure you, it does. One expert recently told me his most successful marketing came from running into a previous neighbor at a mutual friend's birthday party - that chance meeting resulted in the biggest case he had ever worked on!)
Make sure your casual acquaintances understand what you do and for whom, and keep in touch with them so that your name and expertise will come readily to mind when an opportunity arises. If any individuals in your circle are CIOs - Centers of Influence - take them to lunch every now and then. Centers of Influence are people who seem to know everybody and come into contact with people from many different walks of life on a regular basis. This could be your accountant who also holds a seat on the Downtown Development Board or even the golf pro at your local country club.
Don't limit yourself by ignoring potential referral sources. Be clear about what you do and make sure everyone knows you, likes you, and understands what you do.
Thursday, June 22, 2006
There is nothing like the subject of being (or not being) paid by attorneys to get experts talking! After recent comments and articles on the subject, I received quite a bit of feedback. I would like to share some of those emails and our responses now and in future posts. (You can read other comments by experts from a discussion on this subject we had last year in our free special report Expert Pay Discussion) You may have faced similar situations or, may learn how to prevent such problems from occurring. Here's one situation that many of you may have encountered:
"I'm an expert with 20 plus years experience. Only about 10% of my cases end up in court, but in the past week I've had an issue arise regarding deposition fees.
My client attorney failed to communicate to the deposing attorney that my fee for a depo is double that of my normal hourly rate and that I require a two-hour minimum payment (since they don't pay time and mileage). Because of this, I traveled 200 miles (round trip) and spent a half-day for payment of one hour at my regular rate. The deposing attorney refused to pay the additional time or my standard depo rate. Also, the judge ordered the parties back to court at exactly the time I was due to be deposed, which meant I was left cooling my heels for an additional three hours. Nobody paid for this time. Is there a way around this situation?"
"Absolutely there is. You never leave your office for a deposition without having received, in advance, a check for the estimated time of the deposition plus travel time. An expert does well to get paid by the attorney who engaged him, much less by opposing counsel. This was an expensive lesson, but use it to set future policy.
Experts have experienced so much difficulty in getting paid for legal work that I devoted two entire chapters to this subject in my book, The Expert Witness Marketing Book and it is my favorite topic at expert conferences. Because the difficulties are not necessary -- all you have to do is get retainers, signatures, prepayment, etc. in advance.
If you are assertive enough, you rarely have to become aggressive. A situation like the one you now find yourself in requires being aggressive, and even then will most likely not end well. Plus, it does not feel good to have to become aggressive. Do yourself a favor and handle issues of getting paid beforehand."
Wednesday, June 14, 2006
But the attention paid to this subject prompted me to realize that many new subscribers may be unaware of our "Getting Paid" discussion that occurred last year. We published an article in our free monthly email newsletter containing advice for experts on making sure they get paid. The response to that article was so overwhelming, we compiled all of the messages, along with an extended dialogue between Rosalie and an expert with a different perspective on billing and engagement practices of experts. The resulting compilation of the report, expert responses, and dialogue can be found in the free Expert Pay Discussion.
If you haven't, please read the Expert Pay Discussion and the article below and let me know what you think.
Clients and long-time readers of our newsletter know the importance we place on making sure you get paid for your time and expertise. In addition to all of the reasons stated before, the recent high profile trial and investigation into plaintiff firm Milberg Weiss highlight another very persuasive reason to set your rates, have a contract, be paid prior to deposition and testimony and -- most importantly -- make sure you get paid. It's not just a matter of money - you could endanger your reputation, career, and even freedom.
Expert John Torkelson has had a very lucrative career as a securities expert, much of it on behalf of Milberg Weiss. In the midst of a slew of charges against Milberg Weiss, Torkelson's name has surfaced repeatedly. The most recent allegation and the one most relevant to you involves an accusation of being paid on contingency. As Justin Scheck recently reported in The Recorder:
"That's a particularly stinging charge...since he and the lawyers who
employed him told courts that he was pa1d an hourly rate. That criticism
gained steam after a 1998 deposition by L.A. defense lawyer Marshall
Grossman, in which Torkelson admitted he received more than his hourly
rate in some cases, and no payment in ones where Milberg didn't get
I cringed when I read this. I have heard so many stories from experts about discounting their fees or forgiving the outstanding invoices owed them when a case was lost or when retaining counsel failed to collect their fees from their client. Reasons for doing this have included: did not insist on a contract; did not require a retainer, or had long ago exhausted it; did not want to offend the attorney or felt bad for him/her; and, even hoped for more work from the attorney in the future!
But as you can see, it is NOT just a matter of collecting payment due you for services rendered. Failing to insist on payment can be used to paint a picture of you as a "gun for hire" in the eyes of the court, attorneys, and the public at large. Not only could this run off potential clients and disqualify you in court, but it could result in criminal charges against you.
"...L.A. prosecutors, sources familiar with the case say, could bring
Torkelson into the current indictment by arguing that any improprieties
having to do with his payment arrangements are part of an ongoing
practice of perjury or obstructing justice."
If you state to the court that you are working on an hourly rate basis, being paid for your time and expertise, then have in place and use the standard business documents and procedures xpected for this billing practice. Insist on a signed contract, collect a retainer, and require payment of all outstanding invoices prior to issuing a written report or providing deposition or courtroom testimony.
(Note: This is a tactic sometimes used by opposing counsel:
"Mr. Smith, have you received payment yet from XYZ firm for your fees in this matter?"
"Not in full, no."
"So, Mr. Smith, whether you get paid or not depends on what you say here, is that right?")
If the case settles early in the proceedings and you are owed money, immediately take necessary steps to try to collect. At some point, you have to decide if it's worth going to extreme measures, but there are various options in terms of cost and risk. At a minimum, be able to show that you made a reasonable effort to collect your fees so that there is never even the appearance that you work on contingency.
This applies even if the retaining counsel's client loses or if the attorney can't collect from the client. This is irrelevant to you, as you are hired by the attorney and are an advocate for your opinion, not for the client. Using standard business procedures and enforcing them can protect your reputation, credibility and career.
As Scheck concludes in the article:
"But after Torkelson stopped his expert work -- partially, sources
familiar with his work say, because plaintiffs lawyers felt his
credibility was hurt by the accusations of being pa1d on contingency --
his slide toward ignominy began."
Tuesday, June 06, 2006
Long-time readers and clients are doubtless familiar with our mantra, "If you are never turned down because of your rate, you aren't charging enough."
Attorneys may choose an expert based on any one or more of a variety of factors (primarily the "likeability factor" but that's a complete article in itself). But attorneys almost never pick one expert over another simply because he or she has the lower fee; they want to represent the client's interests and win the case!
In fact, a low rate can work against you, in that cost is frequently equated with value. If your rates are not in the mid to high range for experts in your field, it can indicate to some potential prospects that you must not be that good.
With that in mind, be willing to say "No" to potential clients who ask you to discount your rates (they are usually the ones who are difficult to work with and hard to collect from too). Value your knowledge, experience, and expertise and charge for it accordingly.
With 1,104,706 attorneys out there (ABA Market Research Dept., 2005), and growth trends in litigation showing no signs of waning, a scarcity of cases and potential clients is not a problem. It's simply a matter of achieving a certain level of visibility with those attorneys who may need your services and consistently communicating with them.
1) Adopt the attitude, "there is an abundance of available work out there"
2) Implement a strategic, legal-appropriate marketing plan to consistently communicate your value and increase your credibility in the eyes of potential clients, and
3) Be confident and assured of the worth of your services
...you CAN successfully charge and get paid the fees you deserve.
Communicate your value, charge what you're worth and say "no" to bargain shoppers.
Wednesday, May 31, 2006
Consistent communication with your clients, prospects, associates and referral sources is a crucial component of any successful marketing strategy. This communication can be phonecalls, postcard announcements in the mail, letter campaigns, emails, etc. Newsletters, print or electronic, are one form of communication that, if done right, can be a great marketing tool. They can provide valuable, timely information, increase your visibility and branding, and establish your credibility as the go-to expert in your field. (Are you sensing a big "BUT" coming?)
That said, I'm struggling with the concept of 'generic newsletters'. With increasing frequency, experts are asking about the effectiveness of using pre-done marketing materials provided (for a cost) by their professional association or organization. The prefab newsletter part of this package seems to be popular with many experts, and, as one who puts together a monthly newsletter myself, I can definitely see the attraction - doing it from scratch each time takes a lot of time, research, and plain old work!
This morning, I received an email with thoughts about this issue from Trey Ryder, a marketing consultant who specializes in education-based marketing for lawyers. While his advice was specifically geared to attorneys, much of his wisdom is applicable to marketing efforts by experts as well. In an article he titled "Canned Marketing Programs Almost Never Work" he cautions:
"To be effective, marketing must be customized to your specific situation...must emphasize specifically what you do...Specifically why you are qualified...
Some generic materials may work. But usually only in a vacuum, when they are the only materials your prospect receives. When prospects get both generic and specific materials, the specific message wins every time...if you buy them, make sure that you can return them for a full refund. Because once you see how generic they are, you'll see that the information has almost no value to you or your prospects."
Ryder continues and cites an example of my main concern in using these mass distributed materials:
"My accountant told me he receives the same newsletter from four different financial planning firms -- with only one difference: Each newsletter has the name of the financial planning firm on the masthead, implying that this firm wrote the newsletter. In fact, nothing could be further from the truth."
And obviously, the receiver of your newsletter will clue-in on that fact. Where do you stand on this issue? Have you used 'pre-fabbed' newsletters or other marketing materials? What has been result? Please leave a comment on this blog or send me an email and let me know. I will compile the answers (anonymously or attributed at your discretion) and share them with you in a later post.
Monday, May 15, 2006
We've known that we are becoming a more litigious society, but with the recent high profile lawsuits and trials such as Enron, all aspects of our legal system are getting more attention from the media and the average American.
In an article in Saturday's Star-Telegram, Barry Shlachter writes, "With eye-popping jury awards and seismic corporate scandals, attorneys aren't the only ones getting rich from American's lawsuit frenzy. Expert witnesses are reaping rewards too."
He cites statistics such as "The expert-services industry was estimated by one insider to be reaping $6 billion to $8 billion a year," and interviews experts in various fields about their per hour fees, lifestyles, and their "other" careers. It's a well-written article worth checking out.
Thursday, May 11, 2006
An expert who's been working with attorneys for 30 plus years shared some fascinating stories with me this week. Unfortunately, as is often the case, the best stories can't be told : )
But one tale about handling the initial inquiry from a prospective client really struck me because it is a hazard I frequently encounter myself. In one of his "if I'd known then what I know now" vignettes, he lamented sometimes giving out too much information in that very first call from an attorney regarding a specific case. "They call you, give the basics of the case, then proceed to pick your brain for half an hour or more. Then, at the end of the phone call, it's, 'Thank you so much. I'll be in touch.' And you never hear from them again."
Too often, in an effort to demonstrate competence, credentials, and overall expertise, consultants 'give away the store' on that initial contact. Usually, you hear a distant warning bell indicating this, but the desire to close the prospect and work on the case prevails, and you keep talking, especially with encouragement from the attorney, who of course is encouraging - he's getting valuable information!
The best way to avoid falling into this trap is to compose a set of standard responses to choose from so you do not have to scramble on the spur of the moment. For example, after you've heard the basics of the case -- "Mr. Smith, based on the information you've given me, it sounds as though you have a legitimate claim of liability. To fully and completely evaluate the specifics of this case, I would need to see the documents, evidence, etc." You could then add a statement such as, "How would you like to proceed?" but I find that silence is truly golden. Wait for a response.
If you continue to feel pushed to provide free consulting, don't hesitate to say, "Mr. Smith, the fee for my expert consulting services is $XXX an hour. I can fax or email an agreement if you would like to retain my services on this case."
Play around with possible scenarios, responses you might get back, and different things you could possibly say to create goodwill with the prospect while not giving away your services and expertise.
Friday, April 28, 2006
A reader contacted me this week with a warning about quoting from Internet sources in expert reports. My main concern has always been with providing correct attribution but as experts, other issues should be addressed as well. Richard O. Neville, of Fort Myers, Florida gave me permission to share his experience with you, as I think this is a caution all experts should take into consideration when creating their expert reports.
Increasingly, I quote Internet sources in expert reports, and see other experts doing the same. However, there is a potential drawback that has led me to develop a hard and fast rule: “Always make a printed copy of the material before quoting it in a report or other document.”
I learned about this the hard way when testifying about information I had put into an expert report, and whose Internet URL I quoted for each separate item. On cross-examination, the lawyer produced printed copies of the sites I had quoted, but showing different information. Since he never offered these sheets as hearing exhibits, I don’t know where the discrepancies occurred, but it was still effective impeachment, and cast doubt on certain conclusions.
More recently, I looked at a site and forgot to print a copy. When assembling my expert report I returned to the site for confirmation, only to find that the information I wanted to quote was no longer there, because the company had been sold. I even used “The Wayback Machine”, a site that allows you to access outdated copies of a site, without success. Evidently the new owners had trashed the old information.
So, a hard copy (on which your computer will automatically print the site address and date accessed) is the safe way to quote source information from the Internet. And look at the other side - ask the opposing expert to produce a hard copy of any Internet sources relied upon or quoted.
Friday, April 21, 2006
In today's Daily Business Review, Jessica M. Walker writes about the use of metadata mining in the legal world and the ethics and case law involved:
"Metadata -- the so-dalled "DNA of documents" -- is typically hidden from view. But procedures ranging from simple mouse clicks to more invasive tactics involving special software can reveal almost everything about a document and its creation, including the authors, their comments and all changes made to the document."
So with files and even email, it is wise to start from scratch rather than revising or fowarding. If you forward an email and blind copy it to several individuals - if someone knows how to look, they can see who originally wrote it, who it has been sent to (blind copy or not), what has been deleted and what has been added.
Wikipedia defines document metadata:
"Most programs that create documents, including Microsoft Word and other Microsoft products, save metadata with the document files. These metadata can contain the name of the person who created the file (obtained from the operating system), the name of the person who last edited the file, how many times the file has been printed, and even how many revisions have been made on the file. Other saved material, such as deleted text, document comments and the like, is also commonly referred to as "metadata", and the inadvertent inclusion of this material in distributed files has sometimes led to undesireable disclosures."
This can be done with spreadsheet documents too, where the underlying formulas behind calculations could make a big difference in a high-stakes pricing or wage case.
Some law firms are practicing 'data scrubbing' or removing metadata from documents; others are using PDFs which don't contain as much metadata as word processing and spreadsheet documents. However, metadata mining and e-discovery are closely intertwined and many legal questions are yet to be decided.
I urge you to read the article above and get more information about metadata and how it could affect you, your clients and your cases. Be aware of what your documents and emails might contain, but ask your retaining attorney before attempting to remove any metadata on your own - it could be unethical and even illegal if it limits discovery or destroys evidence
Tuesday, April 11, 2006
Compiled by law student Ian Best, this taxonomy of legal blogs began as part of an academic study of blogging for Moritz College of Law at The Ohio State University. Best wanted to demonstrate the amazing resource material blogs can provide for legal related matters. Most of the blogs included are written by lawyers, law professors and law students. Some of these legal blogs could serve as useful sources of up-to-date information regarding case law in your area of expertise, the names of attorneys who handle cases in your field or upcoming issues you should be ready to address.
Saturday, April 08, 2006
Here we go again with the CVs. Yes, you've heard it before, but...proof, check, check again -- bulletproof your CV diligently and update regularly! A recent article in the San Diego CityBEAT, "False Witness: An Expert's Problematic Resume and Court Testimony Could Jeopardize Hundreds" prompted me to get on my soapbox about this one more time.
When bulletproofing an expert's CV it's fair to say that I can be nit-picky. But with good reason. Opposing counsel can and will find any discrepancies (in dates, co-authors, years, association/organization memberships, degrees, certifications, etc.) and magnify or distort them in such a way as to diminish your credibility and discredit you.
Not only can mistakes in your CV damage your reputation within your field of expertise, but as a matter of court record, now frequently available on the Internet, one such incident could effectively be the end of your expert practice.
On an even larger scale, exposure of incorrect data in your CV could invalidate the outcome of all cases on which you've previously worked as an expert and could even result in criminal charges against you for perjury (see the article mentioned above).
Be nit-picky. Have a disinterested third party read your CV line by line and ask you questions about various listings. Make sure it is up-to-date. Go over it with a fine tooth comb so many times you're absolutely sick of it.
Lying on a CV is one thing, but to risk your credibility and career because of a careless mistake or typo would be heartbreaking and pointless.
Wednesday, March 29, 2006
You are probably aware of the occasional but rarely used practice of sequestering jury members (it happens more in the movies than in real life). But the recent alleged actions of attorney Carla J. Martin in the terrorism trial of Zacarias Moussaoui have sparked a debate on the possible sequestration of expert witnesses in future trials.
Martin is accused of improperly contacting several aviation safety experts in violation of standard practices and of Judge Brinkema's order for witnesses not to follow court proceedings or discuss them with each other until all had testified. The entire trial of Moussaoui is now in question.
In response to calls for expert witness sequestration, Peter Nordberg of www.daubertontheweb.com is skeptical of the idea because:
"... any benefit from sequestration is considerably diluted, at least in federal court, by the requirement, in both civil and criminal proceedings, that any expert testimony be disclosed in advance of trial..."
His comments prompted quite an interesting debate on his Blog 702 - scroll down to the March 16th post to read his original comments and the resulting responses.
Thursday, March 09, 2006
Rather than taking a single-purpose approach to networking, think of it as a chance to get to know more about your prospects and the legal community, a chance to be of assistance to others, and the opportunity to learn ways you could be a better expert.
If you hit it off with an attorney or a key staff member in the firm's office while on a case, in a social setting, at a conference, etc., cultivate that relationship. At a later date, when you are both comfortable, ask him what he looks for in experts, how he finds and chooses experts, and get him to share his best and worst experiences with experts.
Networking/relationship building doesn't always have to result in referrals or new business to be considered successful. The information you can glean from contacts within your pool of potential clients can help you reach your prospects effectively, in the language and format that matters to them and helps them the most. The end result is the enhancement of your image and reputation as an expert that understands what is needed and knows how to deliver. And that, my friends, is marketing you just can't buy.
Tuesday, March 07, 2006
If you bill at $300 an hour, does it make sense for you to spend 45 minutes on hold with your Internet provider to find out why your email isn't working? Or, could you hire a local college student for $10 an hour to either fix the problem or sit on hold for 45 minutes?
I think, in effort to save a dollar, sometimes we end up spending much more than that in terms of our time and its value.
Thursday, February 23, 2006
Articles can help you establish credibility and visibility in the minds of your attorney prospects more effectively (and less expensively!) than advertising. Some legal publications will accept articles from non-attorneys and some will not. Just call the managing editor of any publication and ask. Offer to write an article "of interest to their members."
Large publications publish an editorial calendar, that is, a schedule listing each issue's focus. These emphases can be particularly beneficial as you can select a particular issue centered on your area of expertise, for which to offer an article. Be accomodating, of course, to the editor for any other issue he might suggest.
These calendars are also helpful in determining the few times in which it might be cost-effective to run display (one-time) advertising -- when the attorney prospects in your particular specialty are likely to pay special attention to the publication. In fact, the display advertising sales representative at each publication is the person most likely to supply you with the editorial calendar.
As an added benefit, articles you write for legal publications can also be used as direct mail pieces to attorneys, provided the articles are brief.
One important reminder: All written work and presentations are fair game in for opposing counsel.
Monday, February 06, 2006
In the last few weeks, we have received quite a few emails in reference to our March seminar From seeing some of these emails, I feel compelled to issue this warning -- please think hard and long when composing the email address at which you will receive business communication from prospects, clients, etc. This is the email address you put on all of your materials, including your business card and website (and yes, in 2006, as a business person you must have and make available a working email address).
I have seen all kinds of email addresses, from HotBabe@talkdirty.xxx to mailto:HiredGun@abc.xxx and even as bad as PooPoo@buttdr.xxx (these are made-up, but I assure you, the real ones are just as bad).
Avoid referring to your hobbies, being silly or using an email address that is obviously shared with your spouse, roommate, etc. This may seem overly nit-picky to some, but,believe me, it matters. When an attorney is deciding on an expert to contact or is choosing among several experts for a specific case, your email address could be a turn-off. If your email address indicates your penchant for the Steelers and large quantities of ale, does that provide the credibility you want him or her to see? Everything 'legal' has a confidential component; if you share an email address with your spouse it, one, indicates a lack of sophistication that you don't understand the nature of this kind of work and, two, it is a risk for an unknown entity to know anything about the case.
Email addresses are easy to obtain through your regular Internet service provider or the many free email services such as Hotmail and Yahoo. If you feel you must have an email address declaring your allegiance to competitive frog racing, get a separate email address to use for business purposes only.
As you know by now, one must tread carefully through the legal labyrinth -- everything you say, do or write can and will be cussed and discussed by opposing counsel. Your email address can signal a lack of professionalism, injure your credibility or just make you look silly.
So, please, create a dedicated email address to use for your expert consultant practice and/or other business and choose your identification with care to project the image that will prompt your prospects to call.
Tuesday, January 31, 2006
The answers to this question then need to be recorded (along with the person's name, contact information and the nature of the inquiry) preferably in a database such as Act or Microsoft Access. Any record-keeping system, however, is better than none, so use whatever you are comfortable with and will use consistently.
Without this information, how will you determine which, if any, of your marketing efforts are effective? If you have spend thousands of dollars advertising in a certain directory for the last three years and can look back at your records and see that not one single call resulted from it -- you can then redirect that money to a tactic that has been more effective.
For example, if you see that you received several calls from the three targeted mailings you sent last year and engaged four new clients as a result, you can schedule additional mailings with a fair amount of certainty that you are effectively apportioning your marketing dollars.
Keeping track of this information can also provide data on not just how best to allocate your budget but your time as well. Did the chicken dinner association meetings and networking hours you attended provide you with any good contacts? (Note: Unless you followed up, you can't know for sure.)
When you do not collect and maintain records of where your business comes from, how do you know what to do to get more business? You risk wasting time and money and can frustrate your own efforts to establish an effective marketing plan and a consistently successful and growing practice.
Tuesday, January 24, 2006
When questioned about your fees by prospective clients or even opposing counsel in the courtroom, be poised and unapologetic about your income. You have paid your dues in your profession. If you are new to expert consultant work, I personally assure you that you will earn every dollar you are paid in the legal arena. Litigation support is always stimulating and challenging, occasionally inspiring, and potentially lucrative. It can also be stressful and perplexing and make you wonder whether justice can ever really be accomplished. Take pride in the fact that you are contributing to that goal and charge for your efforts.
Tuesday, January 17, 2006
ALL of your writing, speaking, prior testimony, published commentary, etc., is discoverable and can be cussed and discussed with you and about you in qualification proceedings, deposition and in court.
Investigate, verify and cross-examine your facts.
Proofread, proofread and proofread again.
Monday, January 09, 2006
While we advise our clients on strategies to prevent this 'feast or famine' cycle, the expert making a call like this needs help NOW.
Rosalie recently assisted one such caller with this recommendation:
During the famine, start every morning by calling five people -- former clients, prospective clients such as those who called you and didn't use you, associates (but don't hang crepe together), former employers/employees/co-workers (just to outflow communication, which always creates inflow of some kind). Shoot the breeze, ask what's happening, act positive (don't sing the blues), and say to clients and prospects that you are finishing up several jobs and have time to take on some more in the next month, so are checking to see if they have something coming up.
The unspoken premise is that you are normally so busy that new work might have to wait, but (Hey, they lucked out!) at the moment you are able to schedule new work right in. "That will probably not be the case come March, but for right now, my schedule is more flexible."
If you are questioned by a secretary or gatekeeper, "And what is this regarding?" answer along these lines, "I worked with John on a case last year and I'm touching base." Light and easy. Don't take offense at the question -- she needs to know whether the call is urgent or, as in this case, general communication that can wait until after important things like court dates, etc. Be friendly and warm. Many people give her a bad time, so by your warmth, etc., you can make her your ally.
Contact five people every morning (and make some of them phone calls, don't just rely on email!) and I guarantee if you do this every day for one or weeks when things are slow, you will see results.
Thursday, January 05, 2006
1. Create your marketing for your public, not the public. Lawyers are not attracted to and do not respond to gimmicks and other devices that consumers sometimes do. Legal industry standards also preclude results-oriented advertising ("I can help your side win"). Anything with your name on it should be professional and conservative.
2. Determine your target prospects, and focus your promotional activities. Not all attorneys are your prospects.
3. Branding matters. People remember things subliminally as well as directly, so be consistent and easy to recall. State your name and tagline (the explanation of what you are or do) the same way on all of your materials. It is your identity.
4. Repeat engagements and referrals are indeed the ideal sources of business, but word-of-mouth business rarely occurs passively. Well-planned and consistently executed efforts can result in apparently "effortless" client development.
5. Writing and speaking, both within your professional or trade group and for attorney organizations, are the most beneficial marketing activities you can perform. They provide an opportunity to showcase your communication skills and establish you as the authority in your field.
6. Make it easy for prospects to locate you, with listings and possibly advertising, but also mix with attorney groups and individual attorneys in person. Nothing can communicate your value better than you.
7. Proofread, fanatically, everything you write or design--CV, card, stationery, brochure, fee schedule and other forms, correspondence and, certainly, your expert report. Errors make you look sloppy or careless and can come back to haunt you.
8. Hone your communication skills. A well-written report and effective testimony can result not only in additional cases from your retaining counsel but also in future business from opposing counsel.
9. People with whom you have some level of relationship--clients, previous inquirers, referral sources and professional associates--are more valuable than new prospects. They are "the golden goose," which should be groomed. Frequent communication with people in your personal database is more of a profitable investment than a cost.
10. Public relations is the creation, shaping and nurturing of your image in the minds of your public. Marketing is the communication of that image. Success does not just happen--it is planned. Create your impression deliberately and thoughtfully, and devise a strategy with a mixture of marketing activities for your desired results.
Monday, January 02, 2006
Rosalie responded to one such inquiry in a way that really hit the nail on the head, in my unbiased :-) opinion. Here are her thoughts:
"I totally understand! It is the core -- how well a self-employed consultant conquers this challenge determines whether or not he or she makes money.
"I am taking 30 minutes a night to read, right before I go to sleep, as I don't really have time for self-improvement reading either. But, "If you keep doing what you're doing, you'll have more of what you've got." I don't know where I heard that many years ago, but it's total truth, and I remind myself of it when the problem seems circular, as in, 'I can't change things because I'm too busy coping with the problems caused by the way the things are now!'
"That's the bottom line -- no matter how challenging it is to solve the problem, it has to be solved, or next year at this time, you will be right where you are now. That makes it worthwhile to DO SOMETHING DIFFERENT.
"I wish you good courage. Changing things takes it." - Rosalie Hamilton